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[2017] ZALCJHB 16
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Seabelo v Mthembu NO and Others (JR503/14) [2017] ZALCJHB 16 (20 January 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Of
interest to other judges
C
ase
no: JR 503/14
In the
matter between:
Tryphina SEABELO
Applicant
and
JEROME MTHEMBU N.O.
First Respondent
PSSSBC
Second Respondent
DEPT OF HEALTH : FREE STATE
Third Respondent
Heard
:
25 November 2015
Delivered
:
25 November 2015
Edited
:
20 January 2017
Summary:
Review – LRA s 186(2)(a) – unfair
labour practice --- demotion. Arbitrator ruled applicant had not
discharged the onus
to prove unfair labour practice. Application for
review -- ruling on recusal – applicant alleges bias on part of
arbitrator.
No apprehension of bias shown. Award not reviewable.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This
is an application for review of an arbitration award in which the
arbitrator (the first respondent) found that the applicant,
Ms
Tryphina Seabelo, had not proven the existence of an unfair labour
practice in the form of a demotion in terms of s 186(2)(a)
of the
LRA.
[1]
[2]
I handed down an
ex
tempore
judgment as far back as 25
November 2015. The applicant and counsel for the third respondent,
the Department of Health of the Free
State Province, were in court.
The order that was issued on the same day reads:
“
1.
The application for review is dismissed.
2.
There is no order as to costs.”
[3]
It appears that, at some stage, the
applicant asked for a transcript of the judgment. On 26 July 2016 a
court clerk sent an email
to my associate saying:
“
On
25/11/2015 Judge Steenkamp was sitting in Court 2 with many matters.
Amongst those matters was JR 503/14 of
Tryphina
Seabola v Dept of Health
. An ex tempore
judgment was delivered the very same day but unfortunately the
recording machine malfunctioned towards the end of
the proceedings
and we did not manage to capture the
ex
tempore
judgment for the same matter.”
[4]
Further attempts to recover the recorded
judgments came to nought. I was eventually given the file during the
court recess in December
2016 with a request to reconstruct the
judgment. I do so now.
Background
facts
[5]
The applicant was transferred to the post
of ‘Assistant Manager: Special Events’. It was termed a
‘lateral transfer’.
She lodged a grievance and asked that
she “be replaced appropriately to my original position of
assistant manager which now
District Manager Grade 2 and should be
done with retrospective effect.” It was not resolved and she
referred an unfair labour
practice dispute in terms of s 186(2)(a) of
the LRA to the Bargaining Council (the second respondent).
[6]
The Department denied that the applicant
had been demoted. It submitted that she was not performing the same
duties as the District
Manager: Grade 2 as from the time of her
lateral transfer and that her current post was purely administrative.
The
arbitration award
[7]
The arbitrator (the first respondent) found
that it was common cause that the applicant willingly accepted her
lateral transfer
to the events she had not discharged the onus to
show that the Department had committed an unfair labour practice by
demoting her.
She had voluntarily and willingly accepted her lateral
transfer and was bound by the election that she had made.
[8]
The application had asked the arbitrator to
recuse himself prior to the hearing. He refused. The arbitration went
ahead with no
further objection by her.
Review
grounds
[9]
.In her founding affidavit, the applicant
raised the following grounds of review:
9.1
She had objected to the arbitrator,
claiming that he was biased. “The outcome proved my suspicion
in that indeed, the first
respondent acted in a bias [
sic
]
manner as it is indicated below.”
9.2
The arbitrator erroneously found that she
willingly accepted her lateral transfer to the events post.
9.3
The arbitrator “appears to have only
considered the [Department’s] submission and deliberately
disregarded the applicant’s.”
9.4
The arbitrator “failed to apply his
mind judiciously” when he pointed out that she had failed to
state that the Chief
Divisional Officer post is inferior to the
Assistant Director’s.
9.5
The transfer was on less favourable terms
and the arbitrator should have found that it was a demotion.
The
applicant’s argument
[10]
In her written and oral argument, the
applicant focused mainly on the allegation of bias. She argued that,
by proceeding with the
arbitration despite her objection, “a
ground for review as been created.”
[11]
She further argued that the arbitrator
“acted injudiciously in the arbitration and his arbitration
award is reviewable.”
[12]
Lastly, she argued that the arbitrator “use
a stricter test than the balance of probabilities which in itself is
a reviewable
factor.”
Evaluation
[13]
None
of the applicant’s grounds of review is sustainable. The
arbitrator carefully considered the evidence before him; the
owners
in terms of s 186(2)(a) of the LRA; and the conclusion that he
reached is not so unreasonable that no other arbitrator could
have
reached the same conclusion on the evidence before him. The award
passes the test posited by
Sidumo.
[2]
[14]
The applicant could not point to any
evidence of bias on the record. Neither did she set out any facts in
her founding or replying
affidavit to sustain a reasonable
apprehension of bias. In a replying affidavit, she says that “the
issue of possible biasness
[
sic
]
was not raised an arbitration for obvious reasons. It was not raised
precisely because the first respondent was to be assigned
a task of
judging himself which is inappropriate if one considers the rules of
natural justice.”
[15]
There is simply no evidence on which to
sustain this ground of review.
[16]
The arbitrator correctly applied the onus
required by s 186(2)(a). Having done so, he came to a reasonable
conclusion on the balance
of probabilities.
Conclusion
[17]
The award is not reviewable.
[18]
The applicant represented herself. I did
not consider a costs award to be appropriate in law or fairness.
Order
[19]
I therefore made the following order:
19.1
The application for review is dismissed.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
In person
THIRD RESPONDENT:
T L Manye
Instructed by the State
Attorney, Bloemfontein.
[1]
Labour Relations Act 66 of 1995
.
[2]
Sidumo v Rustenburg
Platinum Mines Ltd
[2007]
12 BLLR 1097
(CC).